exv10w14w3w2



 





Exhibit 10.14.3.2




SECOND AMENDMENT TO NOTE PURCHASE AGREEMENT




     This Second Amendment (this “Amendment”) to the Note Purchase Agreement
referenced below is entered into as of April 15, 2004, among CapitalSource
Funding II Trust, a Delaware statutory trust (the “Issuer”), CS Funding II
Depositor LLC, a Delaware limited liability company, as Depositor (in such
capacity, the “Depositor”), CapitalSource Finance LLC, a Delaware limited
liability company (“CapitalSource”), as Loan Originator (in such capacity, the
“Loan Originator”) and as Servicer (in such capacity, the “Servicer”) and
Citigroup Global Markets Realty Corp (the “Purchaser”).



R E C I T A L S:




     WHEREAS, the Issuer, the Depositor, CapitalSource, the Loan Originator the
Servicer and the Purchaser are parties to the Note Purchase Agreement, dated as
of September 17, 2003 (as amended, supplemented and otherwise modified from
time to time, the “Note Purchase Agreement”);



     WHEREAS, the Issuer has requested that certain provisions of the Note
Purchase Agreement be amended, on the terms and subject to the conditions set
forth in this Amendment, to temporarily increase the Maximum Note Principal
Balance to $500,000,000;



     NOW, THEREFORE, in consideration of the mutual covenants and undertakings
herein contained, and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties hereto hereby
agree as follows:



     1. Amendments to the Note Purchase Agreement. Upon the execution
and delivery of this Amendment and satisfaction of the conditions precedent set
forth herein, the definition of “Maximum Note Principal Balance” in Section
1.01 of the Note Purchase Agreement is hereby amended and restated in its
entirety as follows:




     “Maximum Note Principal Balance” means an amount equal
to Five Hundred Million Dollars ($500,000,000), less (i) the
aggregate outstanding Note Principal Balance of the Purchased
Notes, less (ii) any reductions pursuant to Section 2.06 of the
Sale and Servicing Agreement; provided that upon the earlier to
occur of July 31, 2004 or the completion of a Securitization of
any or all of the Loans, Four Hundred Million Dollars
($400,000,000), less (i) the aggregate outstanding Note Principal
Balance of the Purchased Notes, less (ii) any reductions pursuant
to Section 2.06 of the Sale and Servicing Agreement.



     2. Conditions Precedent. The effectiveness of this Amendment shall
be subject to satisfaction (or waiver by the Purchaser) of the following
conditions precedent:




     (a) Execution and Delivery of this Amendment. Each of the
parties hereto shall have executed and delivered this Amendment.




     (b) No Default or Event of Default. No Default or Event of
Default shall have occurred or be continuing.



 









 





     3. No Reliance. Each of the Loan Originator, the Depositor and the
Issuer hereby acknowledges that it has not relied on the Purchaser or any of
its officers, directors, employees, agents and “control persons” as such term
is used under the Act and under the Securities Exchange Act of 1934, as
amended, for any tax, accounting, legal or other professional advice in
connection with the transactions contemplated by this Amendment or the Basic
Documents, that each of the Loan Originator, the Depositor and the Issuer has
retained and been advised by such tax, accounting, legal and other
professionals as it has deemed necessary in connection with the transactions
contemplated by this Amendment and the Basic Documents and that the Purchaser
makes no representation or warranty, and shall have no liability with respect
to, the tax, accounting or legal treatment or implications relating to the
transactions contemplated by this Amendment and the Basic Documents.



     4. Defined Terms; Headings. All capitalized terms used herein,
unless otherwise defined herein, have the same meanings provided herein or in
the Note Purchase Agreement. The headings of the various Sections of this
Amendment have been inserted for convenience of reference only and shall not be
deemed to be part of this Amendment.



     5. Limited Amendment. This Amendment is limited precisely as
written and shall not be deemed to (a) be a consent to a waiver or any other
term or condition of the Note Purchase Agreement, the other Basic Documents or
any of the documents referred to therein or executed in connection therewith or
(b) prejudice any right or rights the Purchaser may now have or may have in the
future under or in connection with the Note Purchase Agreement, the other Basic
Documents or any documents referred to therein or executed in connection
therewith. Whenever the Note Purchase Agreement is referred to in the Note
Purchase Agreement or any of the instruments, agreements or other documents or
papers executed and delivered in connection therewith, it shall be deemed to
mean the Note Purchase Agreement, as the case may be, as modified by this
Amendment. Except as hereby amended, no other term, condition or provision of
the Note Purchase Agreement shall be deemed modified or amended, and this
Amendment shall not be considered a novation and all terms and conditions of
the Note Purchase Agreement shall remain in full force and effect and are
hereby ratified in all respects.



     6. Construction. This Amendment is a document executed pursuant to
the Note Purchase Agreement and shall (unless otherwise expressly indicated
therein) be construed, administered or applied in accordance with the terms and
provisions thereof.



     7. Counterparts; Facsimile Signature. This Amendment may be
executed by the parties hereto in several counterparts, each of which shall be
deemed to be an original and all of which shall constitute together but one and
the same agreement. The parties may execute facsimile copies of this Amendment
and the facsimile signature of any such party shall be deemed an original and
fully binding on said party.



     8. Governing Law. This Amendment shall be governed by, subject to
and construed in accordance with the applicable terms and provisions of Section
11.06 (Governing Law; Jurisdiction) of the Note Purchase Agreement, which terms
and provisions are incorporated herein by reference.



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     9. Limitation on Liability. It is expressly understood and agreed
by the parties hereto that (a) this Amendment is executed and delivered by
Wilmington Trust Company, not individually or personally, but solely as Owner
Trustee of CapitalSource Funding II Trust, in the exercise of the powers and
authority conferred and vested in it, (b) each of the representations,
undertakings and agreements herein made on the part of the Issuer is made and
intended not as personal representations, undertakings and agreements by
Wilmington Trust Company but is made and intended for the purpose for binding
only the Issuer, (c) nothing herein contained shall be construed as creating
any liability on Wilmington Trust Company, individually or personally, to
perform any covenant either expressed or implied contained herein, all such
liability, if any, being expressly waived by the parties hereto and by any
Person claiming by, through or under the parties hereto and (d) under no
circumstances shall Wilmington Trust Company be personally liable for the
payment of any indebtedness or expenses of the Issuer or be liable for the
breach or failure of any obligation, representation, warranty or covenant made
or undertaken by the Issuer under this Amendment or any other related
documents.



     10. Binding Effect; Assignability. This Amendment shall be
governed by, subject to and construed in accordance with the applicable terms
and provisions of Section 11.04 (Binding Effect; Assignability) of the Note
Purchase Agreement, which terms and provisions are incorporated herein by
reference.



[Remainder of Page Intentionally Left Blank. Signature Pages Follow.]




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     IN WITNESS WHEREOF, the parties hereto have caused this Second Amendment
to the Note Purchase Agreement to be duly executed by their respective
authorized officers as of the day and year first written above.



	 	 	 	 	 
	 	 	CAPITALSOURCE FUNDING II TRUST,
	

	 	By:
	 	Wilmington Trust Company, not in its individual capacity but solely as Owner Trustee
	 
	 	 	 	 
	

	 	By:
	 	/s/ Linda C. Mack
	

	 	 	 	
 
	

	 	Name:
	 	Linda C. Mack
	

	 	Title:
	 	Financial Services Officer
	 
	 	 	 	 
	 	 	CS FUNDING II DEPOSITOR LLC,
	 	 	as Depositor
	 
	 	 	 	 
	

	 	By:
	 	/s/ Steven A. Museles
	

	 	 	 	
 
	

	 	Name:
	 	Steven A. Museles
	

	 	Title:
	 	Senior Vice President
	 
	 	 	 	 
	 	 	CAPITALSOURCE FINANCE LLC,
	 	 	as CapitalSource, Loan Originator and Servicer
	 
	 	 	 	 
	

	 	By:
	 	/s/ Steven A. Museles
	

	 	 	 	
 
	

	 	Name:
	 	Steven A. Museles
	

	 	Title:
	 	Senior Vice President








[Signature Pages to Second Amendment to Note Purchase Agreement]


 









 







	 	 	 	 	 
	 	 	CITIGROUP GLOBAL MARKETS REALTY CORP.,
	 	 	as Purchaser
	 
	 	 	 	 
	

	 	By:
	 	/s/ Jeff Cady
	

	 	 	 	
 
	

	 	Name:

Title:
	 	Jeff Cady

Vice President





[Signature Pages to Second Amendment to Note Purchase Agreement]